Citation Nr: 0413722
Decision Date: 05/28/04 Archive Date: 06/02/04
DOCKET NO. 00-20 613A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to an effective date prior to September 27,
1996, for the grant of service connection for post-traumatic
stress disorder.
2. Entitlement to a rating in excess of 10 percent for post-
traumatic stress disorder for the period prior to January 30,
2001.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. M. Fogarty, Counsel
INTRODUCTION
The veteran served on active duty from November 1966 to
December 1969.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of an October 1999 rating decision from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California.
This appeal is being REMANDED to the RO via the Appeals
Management Center in Washington, DC. VA will notify the
veteran if further action is required on his part.
REMAND
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107 (West 2002)) was signed into law by the President. This
law redefines the obligations of VA with respect to the duty
to assist and includes an enhanced duty to notify a claimant
as to the information and evidence necessary to substantiate
a claim for VA benefits. See also Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002). The VCAA also eliminated the
concept of a well-grounded claim and superseded the decision
of the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, 14 Vet. App. 174 (2000), which had held that
VA could not assist in the development of a claim that was
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment and not yet final
as of that date. See VCAA, § 7(a), 114 Stat. At 2099-2100.
In the instant action, the appellant's claim was filed prior
to the date of enactment; therefore, the VCAA is applicable
to the appellant's claim.
A review of the record reflects that the appellant has not,
at any time, been notified by the RO of the notice and duty
to assist provisions in the VCAA. Because of the change in
the law brought about by the VCAA, a remand in this case is
required for compliance with the notice and duty to assist
provisions contained in the new law. In addition, because
the RO has not yet considered whether any additional
notification or development action is required under the
VCAA, it would be potentially prejudicial to the appellant if
the Board were to proceed to issue a decision at this time.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
Accordingly, this case is REMANDED to the RO for the
following action:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, 5103A (West 2002), and any
other applicable legal precedent are fully
complied with and satisfied. See also 38
C.F.R. § 3.159 (2003); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).
2. After any necessary notice and
development has been completed, the RO
should again review the record. If any
benefit sought on appeal for which a
notice of disagreement has been filed
remains denied, the appellant and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, subject to current appellate procedures, this
case should be returned to the Board for further appellate
consideration, if appropriate. The purpose of this REMAND is
to ensure compliance with the notice and duty to assist
provisions of the VCAA, and the Board intimates no opinion,
either favorable or unfavorable, as to the ultimate outcome
of this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).